Beruflich Dokumente
Kultur Dokumente
___________________________
Merrimack
No. 2005-187
ANNETTE D'AMOUR
v.
Robert Stein & Associates, PLLC, of Concord (Robert A. Stein on the brief
The record reflects the following facts. On the morning of April 7, 2003,
D’Amour drove to her home at an apartment complex in Concord. She parked
her vehicle in its designated parking space with the front of the vehicle facing
away from the apartment. She got out of the car, opened the back door on the
driver’s side and removed several coolers and a grocery basket to carry into her
apartment. She proceeded to walk along the driver’s side of the car, toward the
rear of the vehicle, then alongside the rear bumper, when she slipped on ice
and fell. D’Amour never reached the walkway leading from the parking lot to
her apartment.
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would a reasonable person in the position of the insured based on a more than
casual reading of the policy as a whole.” Wilson v. Progressive N. Ins. Co., 151
N.H. 782, 788 (2005).
The policy provides that Amica “will pay reasonable expenses incurred
for necessary medical . . . services because of bodily injury . . . [s]ustained by
an insured.” The policy defines “insured” as “[y]ou or any family member . . .
while occupying . . . a motor vehicle . . . .” The policy defines “occupying” as “in,
upon, getting in, on, out or off.”
On appeal, D’Amour argues that she was occupying her vehicle for
purposes of coverage because she was in the process of “getting out” of the
vehicle when she was injured. D’Amour argues that “occupying,” when defined
as “getting out,” is ambiguous because it is susceptible to several reasonable
and different interpretations. She argues that the ambiguity must be
construed in her favor and against the insurer and, thus, there is coverage.
Both parties rely upon State Farm Mutual Automobile Insurance Co. v.
Cookinham, 135 N.H. 247 (1992). In Cookinham, the claimant was leaning her
elbows on an insured vehicle in which she intended to accept a ride when she
was struck by an uninsured vehicle. Id. at 248. The trial court ruled that the
claimant was not entitled to medical coverage because she was not “occupying”
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the insured vehicle at the time of her injury. Id. at 249. The policy in
Cookinham defined “occupying” as “in or upon or entering into or alighting
from” the vehicle. Id. at 248. The issue was whether the claimant was “upon”
the vehicle and therefore “occupying” it at the time of her injury. Id. at 249-50.
The trial court in Cookinham ruled that the claimant was not entitled to
coverage because she was “pedestrian or sidewalk oriented,” rather than
“vehicle oriented” at the time of the accident. Id. at 249. The trial court
applied the “vehicle orientation standard,” under which a claimant must be
“engaged in a transaction essential to the use of the insured vehicle at the time
of the accident” in order to be “occupying” the vehicle. Id. (quotation omitted).
The trial court held that the claimant was not “occupying” the vehicle because
she was not “engaged in a transaction essential to the use of the insured
vehicle at the time of the accident.” Id. On appeal, the insurance company
urged us to adopt the trial court’s interpretation of “occupying.”
Here, the parties agree that D’Amour was no longer “in or upon” the
vehicle at the time of her injury. The parties also agree that a claimant need
not have physical contact with the vehicle in order to be “occupying” it. Amica
argues that a person is “getting out” of, and thus “occupying,” a vehicle only
while she is engaged in a transaction related to the motor vehicle. This
interpretation is consistent with the vehicle orientation test and is therefore
reasonable. See id.
D’Amour argues that “getting out” of, and thus “occupying,” a vehicle
includes “the process of moving away from the vehicle to a place of safety.” We
agree with D’Amour that, under the vehicle orientation test, “occupying” may
include the process of moving away from the vehicle to a “place of safety.” See,
e.g., Kantola v. State Farm Ins., 405 N.E.2d 744, 746 (Ohio Mun. 1979), (child
found to be “alighting from” school bus when hit by car while crossing road to
his home because he had not yet reached a “place of safety”); Etter v. Travelers
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Ins. Cos., 657 N.E.2d 298, 302-03 (Ohio Ct. App. 1995) (claimant “getting out”
because he had not reached a “place of safety” when standing on icy median
approximately twenty feet from his vehicle and pushing a vehicle that had slid
off the road); Olsen v. Farm Bureau Ins. Co. of Nebraska, 609 N.W.2d 664,
670-71 (Neb. 2000) (claimant “alighting from” vehicle which had driven into a
power pole because, although he was electrocuted by a live power line
somewhere between four and forty feet from the vehicle, he remained within
“zone of risk”); State Farm Mut. Auto. Ins. Co. v. Holmes, 333 S.E.2d 917, 918
(Ga. Ct. App. 1985) (decedent was “alighting from” vehicle because he had not
reached a “neutral zone” when, a few feet from vehicle, he was swept away by
floodwaters); Nelson v. Iowa Mutual Ins. Co., 515 P.2d 362, 364 (Mont. 1973)
(decedent was still “alighting from” vehicle stuck in a ditch during blizzard
where she froze to death 143 feet from vehicle).
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At the time of her injury, D’Amour had severed her connection to her
vehicle. She was no longer engaged in activities essential to its use and was
thus not “occupying” the vehicle. See id. at 250. This result is supported by
cases from other jurisdictions. See, e.g., Miller v. Loman, 518 N.E.2d 486, 492
(Ind. Ct. App. 1987) (no recovery for claimant who had exited truck and walked
approximately thirty feet to kick muffler to side of the road when hit by another
vehicle because he “had embarked on a course of conduct . . . entirely distinct
from acts reasonably necessary to make an exit from the car”); Carta v.
Providence Washington Indemnity Co., 122 A.2d 734, 737 (Conn. 1956) (no
recovery for claimant run over by rolling vehicle after she had exited it and
walked around its front, even though she was within inches of the vehicle,
because “[a] person is not in the process of alighting if . . . he has embarked on
a course of conduct entirely distinct from acts reasonably necessary to make
an exit from the car”). Accordingly, the superior court did not err by granting
summary judgment to Amica.
Affirmed.